Orissa High Court
Uma Shankar Trivedi vs Minu Sharma on 8 December, 2016
Author: S.K. Sahoo
Bench: S.K. Sahoo
IN THE HIGH COURT OF ORISSA, CUTTACK
CRIMINAL REVISION NO. 156 of 2001
From the order dated 16.12.2000 of the S.D.J.M., Sambalpur in
I.C.C. Case No. 07/2000.
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Uma Shankar Trivedi ......... Petitioner
-Versus-
Minu Sharma ......... Opp. party
For Petitioner: - Mr. Ajit Kumar Hota
For Opp. Party: - Mr. Sukumar Ghosh
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P R E S E N T:
THE HONOURABLE MR. JUSTICE S.K. SAHOO
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Date of Hearing and Order- 08.12.2016
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S. K. Sahoo, J.None appears on behalf of the petitioner.
Heard the learned counsel for the opposite party. The petitioner Uma Shankar Trivedi has filed this criminal revision petition challenging the impugned order dated 16.12.2000 passed by the learned S.D.J.M., Sambalpur in I.C.C. Case No.07 of 2000 in recalling the order dated 22.09.2000 in taking cognizance of the offence under section 2 448 of the Indian Penal Code and issuance of process against the opposite party.
The complaint petition was filed by the petitioner against the opposite party for commission of offence under section 448 of the Indian Penal Code and the learned S.D.J.M., Sambalpur being satisfied that there was sufficient material available on record to proceed against the opposite party, vide order dated 22.09.2000, was pleased to take cognizance of the offence under section 448 of the Indian Penal Code and issued process against the opposite party for his appearance.
After receipt of the summons, the opposite party filed an application before the learned S.D.J.M., Sambalpur on 14.11.2000 to recall the order of taking cognizance dated 22.09.2000. He relied upon the decision of the Hon'ble Supreme Court in case of K. M. Mathew -Vrs.- State of Kerala and another reported in (1992) 5 Orissa Criminal Reports 66.
The learned S.D.J.M., Sambalpur in the impugned order has been pleased to hold that in view of the ratio laid down in K.M. Mathew's case (Supra), he has got jurisdiction to entertain an application for recall of the order of cognizance and further held that on perusal of the documents supplied by 3 the counsel for the opposite party, it is forthcoming that O.G.L.S. Revision has not been finally adjudicated, for which, there was no landlord and tenancy existing between the parties and it was further held that the petitioner did not seek to redress the Court with clean hand and suppressed the truth about the O.G.L.S. proceeding and accordingly, the order dated 22.09.2000 was recalled.
The main ground taken by the learned counsel for the petitioner while challenging the impugned order is that in the subsequent decision, the Hon'ble Supreme Court in case of Adalat Prasad -Vrs.- Rooplal Jindal reported in (2004)29 Orissa Criminal Reports (SC) 264 decided on 25.08.2004 held that K. M. Mathew's case does not lay down the correct law. It is the further case of the petitioner that since in the subsequent decision, the earlier decision of the Hon'ble Supreme Court has been held not to be correct law, the impugned order which is based on the earlier decision should be set aside and the opposite party should be asked to face trial for offence under section 448 of the Indian Penal Code.
The learned counsel for the opposite party Mr. Sukumar Ghosh contended that by the time the impugned order dated 16.12.2000 recalling the order dated 22.09.2000 4 was passed, K.M Mathew case was holding the field and Adalat Prasad case was decided on 25.08.2004 and therefore, it cannot be said that the learned S.D.J.M., Sambalpur committed any illegality in relying upon the ratio laid down in the K.M. Mathew case and recalling the order of taking cognizance. The learned counsel for the opposite party placed reliance in the decision of the Hon'ble Supreme Court in case of Harsh Dhingra -Vrs.- State of Haryana reported in AIR 2001 SC 3795.
Considering the contentions raised by the learned counsel for the opposite party and on going through the averments made in the revision petition as well as the impugned order, I find that the observation of the learned S.D.J.M., Sambalpur that the complainant-petitioner has not come to the Court with clean hand and suppressed the truth about the O.G.L.S. proceeding which is based on documentary evidence appears to be correct. It is also not dispute that at the time of entertaining the recall petition filed by the opposite party on dated 14.11.2000 and passing the impugned order dated 16.12.2000, the ratio laid down by the Hon'ble Supreme Court in case of K.M. Mathew's case was in force. 5
In case of Harsh Dhingra -Vrs.- State of Haryana reported in AIR 2001 Supreme Court 3795, it is held as follows:-
"Prospective declaration of law is a device innovated by this Court to avoid reopening of settled issues and to prevent multiplicity of proceedings. It is also a device adopted to avoid uncertainty and avoidable litigation. By the very object of prospective declaration of law, it is deemed that all actions taken contrary to the declaration of law, prior to the date of the declaration are validated. This is done in larger public interest. Therefore, the subordinate forums which are bound to apply law declared by this Court are also duty bound to apply such dictum to cases which would arise in future. Since it is indisputable that a Court can overrule a decision, there is no valid reason why it should not be restricted to the future and not to the past. Prospective overruling is not only a part of constitutional policy but also an extended facet of stare decision and not judicial legislation."
In case of Baburam -Vrs.- C.C. Jacob reported in A.I.R. 1999 S.C. 1845, it was held that the subordinate forums which are legally bound to apply the declaration of law made by the Supreme Court are also duty-bound to apply such dictum to cases which would arise in future only. In matters where 6 decisions opposed to the said principle have been taken prior to such declaration of law, it cannot be interfered with on the basis of such declaration of law.
In case of Ashok Kumar Gupta -Vrs.- State of U.P. reported in (1997) 5 SCC 201, it is held that the Court is required to adjust the completing rights taking into consideration the prior history of the rule in question, its purpose and effect and to find out whether retrospective operation will accelerate or retard its operation. Therefore, evolving of the appropriate rule to give effect to the decision of the Court overruling its previous precedent, is one of judicial craftsmanship with pragmatism and judicial statesmanship as a usual outline to bring about smooth transition of the operation of law without unduly affecting the rights of the people who acted upon the law operated prior to the date of the judgment overruling the previous law.
In case of Sarwan Kumar and Anr. v. Madan Lal Aggarwal reported in (2003) 4 SCC 147, it is observed as follows:
"15. The doctrine of "prospective overruling" was initially made applicable to the matters arising under the Constitution but we understand the same has since been made applicable to the matters arising under the statutes as well. Under the doctrine of "prospective overruling", the law 7 declared by the Court applies to the cases arising in future only and its applicability to the cases which have attained finality is saved because the repeal would otherwise work hardship to those who had trusted to its existence. Invocation of doctrine of "prospective overruling" is left to the discretion of the Court to mould with the justice of the cause or the matter before the Court."
Therefore, I am of the view that since at the time of consideration of the recall application filed by the opposite party, the ratio laid down in K. M. Mathew case was holding the field, merely because subsequently it was held to be not the correct law in view of the decision rendered in Adalat Prasad case, that cannot be a ground to set aside the impugned order.
Law is well settled as held in the case of Motilal Songara -Vrs.- Prem Prakash @ Pappu and another reported in (2013) 55 Orissa Criminal Reports (SC) 881 that anyone who takes recourse to method of suppression in a Court of law, is, in actuality, playing fraud with the Court, and the maxim suppresio veri, expression falsi i.e. suppression of the truth is equivalent to the expression of falsehood, gets attracted. It has been further held that as the order has been obtained by practicing fraud and suppressing material fact before a Court of 8 law to gain advantage, the said order cannot be allowed to stand. It is further held in case of A. V. Papayya Sastry and others -Vrs.- Government of A.P. and others reported in (2007) 4 Supreme Court Cases 221 that judgment, decree or order obtained by playing fraud on the Court, Tribunal or Authority is a nullity and non est in the eye of the law. Such a judgment, decree or order by the first Court or by the final Court has to be treated as nullity by every Court, superior or inferior. It can be challenged in any Court, at any time, in appeal, revision, writ or even in collateral proceeding. Fraud is thus an extrinsic collateral act which vitiates all judicial acts, whether in rem or in personam. The principle of 'finality of litigation' cannot be stretched to the extent of an absurdity that it can be utilized as an engine of oppression by dishonest and fraudulent litigants.
As observed by the learned S.D.J.M., Sambalpur, the complainant-petitioner has practiced fraud on the Court and has not come with a clean hand and suppressed truth about the O.G.L.S. proceeding and therefore, I am of the view that the learned S.D.J.M., Sambalpur has rightly exercised the jurisdiction in recalling the order of taking cognizance dated 22.09.2000 under section 448 of the Indian Penal Code. 9
Accordingly, I do not find any illegality or impropriety in the impugned order so as to exercise my revisional jurisdiction to interfere with the same and therefore, the revision petition being devoid of merit, stands dismissed.
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S.K. Sahoo, J.
Orissa High Court, Cuttack The 08th December, 2016/Sisir